FAMILY AND DIVORCE LITIGATION

family and divorce litigation

Overview

Family Law is one of the most emotionally charged practice areas in the legal field. It takes an experienced and dedicated attorney to handle those cases that are important to you, those that involve you and your family. We practice all aspects of family law which include but are not limited to the following:

  • Divorce
  • Custody disputes
  • Child support
  • Modifications
  • Domestic Violence issues

If you are filing for divorce or have been served with a Complaint for Divorce we can guide you through the divorce process. If you choose to file an uncontested divorce we can prepare all of the necessary documents required to effectuate a fairly simple, cost-effective, and time-saving divorce. If you decide that an agreement is not probable we can handle all of your contested divorce needs such as initial filing, discovery, settlement negotiations, mediations, trial, post-trial motions, and appeals.

We can assist you with all of your child custody and support needs. We have experience in custody disputes whether it is initial custody determination or a modification of custody. Our attorneys know how important your child is to you, and we will fight for the best interest of you and your child. When it comes to establishing child support or modifying a support order we have a working knowledge of the Alabama established guidelines and modification criteria. We will do our best to ensure that you and your child get the financial support that you need.

Domestic Violence is a very serious issue that should not be taken lightly. We can advise you on the necessary steps you need to take to protect you and your family. If you have been convicted of domestic violence your rights as a parent could be significantly impacted. You could lose custody, placement, or unsupervised visitation with your child if you are convicted. Contact William Fortune about your rights.

Alabama Divorce Overview

In Alabama we recognize two types of divorce: uncontested and contested. An uncontested divorce is one in which the parties are able to come to an agreement regarding custody of their children and/or marital assets and other issues. A contested divorce is one in which the parties are unable to come to an agreement regarding custody of children and/or marital assets and other issues.

An uncontested divorce is often the simplest and most cost-effective way to get divorced.  If both parties can agree to a division of the marital property, assets, and child custody then an uncontested divorce is the best option.  An uncontested divorce a lot of times is easier on the parties and the children as the parties tend to be more amicable about the divorce.  In an uncontested divorce, one attorney can draft all of the paperwork; however, that attorney only represents one party.  It is unethical for an attorney to represent both parties in a divorce.  While a second attorney is not needed it is highly recommended that the pro se party has another attorney review the documents.

A contested divorce can be an expensive and time-consuming endeavor as it requires a lot of time and paperwork.  A contested divorce has several steps whereas an uncontested divorce can usually be done all at the same time.  Some of the steps involved in a contested divorce are: the filing of the Complaint, filing of an Answer; service of Discovery on each party, settlement negotiations (if possible), trial, post trial motions and an appeal (when needed).  Most of the time counsel for each party is employed in order to handle correspondence between the clients and prepare for the trial process.  It is important to consider the above-referenced factors, and the hardship that a contested divorce can impose on all of the parties involved especially if the parties have a child.

In Alabama the grounds for divorce are divided into two (2) categories: fault and no fault.  A fault based divorce is a divorce that may be granted when the required grounds are present and at least one spouse asks that the divorce be granted on the grounds of fault.  A no fault divorce is a divorce where the spouse asking for a divorce does not have to prove that the other spouse did something wrong.  Contained in the fault and no fault divorce categories are ten (10) grounds for divorce that Alabama recognizes and they are as follows:

  • No-Fault Based Grounds:
    • Incompatibility
    • Irretrievable breakdown of the marriage
    • Voluntary abandonment from bed and board for one year
  • Fault Based Grounds:
    • Incapacitated from entering into the marriage state
    • Adultery
    • Imprisonment
    • Habitual drunkenness or drug use
    • Insanity for five successive years
    • In favor of the husband, when the wife was pregnant at the time of marriage, without his knowledge or agency
    • Domestic Abuse

Divorce can be tough regardless of whether it is uncontested or contested.  William Fortune understands the emotional and financial hardship that a divorce can cause, and we will do our best to guide you through the process while making the transition as easy as possible.  We can handle all of your needs and questions whether your divorce is contested or uncontested.  If you have already received your judgment of divorce and would like an appeal we can consult with you about the appeals process.

Child Custody Overview.

Aside from divorce, custody disputes and modifications can be the most difficult areas of practice in family law.  More often than not the parties involved in the dispute care only about what is in the best interest of their children, but sometimes when the children become caught in the middle of the parties legal issues the children’s interest is adversely affected. One of the most important things to remember is that people initiate custody determinations and modifications for a variety of reasons, and these reasons are not always a personal attack on the fitness of the opposing party.  There are several different reasons and ways that determinations and modifications are requested but some of the most common are:

  • Initial Custody Determinations
  • Custody Determination by agreement or disposition during the divorce process
  • Custody Modifications

An initial custody determination can be made in situations where the parties have a child together, but were not married.  In this situation either party can file for a custody determination requesting one of several different types of custody or visitation. In Alabama we recognize the following types of custody:

  • Joint Custody
    • This is where both parents share decision-making authority and physical custody.
  • Joint Legal Custody
    • Both parents have equal rights and responsibilities for major decisions concerning the child.
  • Joint Physical Custody
    • Physical custody is shared by the parents in a way that allows both parent frequent contact and visits with the child.  However, joint physical placement does not necessarily mean that visitation with the child will be of an equal duration.
  • Sole Legal Custody
    • One parent has sole rights and responsibilities to make major decisions concerning the child.
  • Sole Physical Custody
    • The parent has sole physical custody and the other parent has rights of visitation except as otherwise provided by the court.

Once a custody determination is made child support will also be calculated in order to provide the custodial parent with financial support for the child.

Most often custody is determined during the divorce process.  In a divorce action where the parties can come to an agreement regarding the custody and placement of the child, the court will often ratify the parties agreement into the divorce decree thus making it binding.  Custody by agreement can often be easier on the parties and the child if the settlement is amicable and both parties are effective communicators. William Fortune understands the importance of protecting yours and your children’s interest, and we will do our best to facilitate an amicable and fair agreement regarding custody of your child if that is the course you would like to pursue.

In the event of a divorce where the parties cannot agree on custody and placement, we will fight for your rights as a parent who is deserving of placement.

A modification of custody is a proceeding that requests a change in custody after an initial determination has been made. There are several reasons why a party might request a custody modification, and whether you are initiating or defending against a modification petition we will be there every step of the way.  At Fortune and Beard our experienced attorney’s know what it takes to change custody and how to defend you in the event that a change has been requested.

Post Judgment Support Overview.

In Alabama the two (2) most common types of support obligations are child support and spousal support. Child support is generally calculated upon the initial custody determination whether by divorce or a petition to determine custody. Spousal support is generally awarded in the final Judgment of Divorce or by agreement of the parties. Support Orders can be modified if the asking party can show certain criteria.

A spousal support modification can be requested once there has been a material change in circumstances of one or both parties after the entry of the Final Judgment of Divorce. The asking party bears the burden to prove that a change is necessary. Factors for the court to consider are:

  • The remarriage of the paying spouse;
  • The receiving spouse’s employment since the divorce;
  • The financial status and needs of the receiving spouse;
  • Whether the receiving spouse is presently capable of self-support;
  • The ability of the paying spouse to respond to the former spouse’s financial need;
  • Whether there are dependent children;
  • Whether alimony was originally agreed upon;
  • Whether there has been a material change in the financial situation of either, or both, of the parties;
  • The health, age, and education of the parties, the earning ability of the parties and their probable future prospects, the duration of the marriage, the conduct of the parties with particular reference to the cause of divorce;
  • The length of time separating the initial alimony award and the modification hearing; and,
  • Any other material and relevant circumstances as disclosed by the evidence in a particular case.

Child Support is calculated using specific guidelines mandated by the State of Alabama that factor in both parties’ income and expenses involving the child. Once a support award is made the party asking for the modification generally needs to show a ten percent (10%) change in the amount awarded and amount now determined by the guidelines. The Child Support Guidelines contain very specific language concerning modifications:

  • The child support guidelines shall be used by the parties as the basis for periodic updates of child support obligations.
    • The provisions of any judgment respecting child support shall be modified only as to installments accruing after the filing of the petition for modification.
    • There shall be a rebuttable presumption that child support should be modified when the difference between the existing child support award and the amount determined by application of these guidelines varies more than ten percent (10%), unless the variation is due to the fact that the existing child support award resulted from a rebuttal of the guidelines and there has been no change in the circumstances that resulted in the rebuttal of the guidelines

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